{ "id": 4348354, "name": "TYRONE WILLIAMS and WHF, INC. OF VIRGINIA, Plaintiff v. ANNITTIE PEABODY and PEABODY'S HOME IMPROVEMENTS, INC., Defendants", "name_abbreviation": "Williams v. Peabody", "decision_date": "2011-11-15", "docket_number": "No. COA10-1461", "first_page": "1", "last_page": "20", "citations": [ { "type": "official", "cite": "217 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "672 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642769, 12642770, 12642771 ], "weight": 3, "year": 2009, "pin_cites": [ { "parenthetical": "quotation omitted" }, { "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0685-01", "/se2d/672/0685-02", "/se2d/672/0685-03" ] }, { "cite": "665 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641722 ], "year": 2008, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0103-01" ] }, { "cite": "649 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639165 ], "year": 2007, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0014-01" ] }, { "cite": "691 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "364 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152333 ], "year": 2010, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0090-01" ] }, { "cite": "329 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "330", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720084 ], "year": 1985, "pin_cites": [ { "page": "455", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0450-01" ] }, { "cite": "349 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0 }, { "cite": "318 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736107 ], "year": 1986, "pin_cites": [ { "page": "432-34" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0421-01" ] }, { "cite": "557 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "148 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364237 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/148/0147-01" ] }, { "cite": "196 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1973, "pin_cites": [ { "page": "192", "parenthetical": "applying the exception in part because the individual was the president and owned all the stock of the corporate party" }, { "page": "190" }, { "page": "191" }, { "page": "193" }, { "page": "192" }, { "page": "192" }, { "page": "192" } ], "opinion_index": 0 }, { "cite": "283 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558870 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0373-01" ] }, { "cite": "97 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1957, "pin_cites": [ { "page": "496", "parenthetical": "emphasis in original" }, { "page": "496" }, { "page": "496" }, { "page": "496" }, { "page": "496" }, { "page": "496" }, { "page": "496" } ], "opinion_index": 0 }, { "cite": "246 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623555 ], "weight": 7, "year": 1957, "pin_cites": [ { "page": "39", "parenthetical": "emphasis in original" }, { "page": "39" }, { "page": "39" }, { "page": "39" }, { "page": "39" }, { "page": "39" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0034-01" ] }, { "cite": "112 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1960, "pin_cites": [ { "page": "135" }, { "page": "136", "parenthetical": "declining to apply the exception in part because \"[the corporation] has other shareholders than [the individual]\"" }, { "page": "135" } ], "opinion_index": 0 }, { "cite": "251 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626746 ], "weight": 3, "year": 1960, "pin_cites": [ { "page": "627" }, { "page": "628" }, { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0624-01" ] }, { "cite": "456 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "131", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "118 N.C. 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App.", "case_ids": [ 8522460 ], "year": 1988, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0090-01" ] }, { "cite": "363 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "pin_cites": [ { "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "192 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11145576 ], "year": 1999, "pin_cites": [ { "page": "487", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0485-01" ] }, { "cite": "355 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "481" }, { "page": "481" } ], "opinion_index": 0 }, { "cite": "319 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741625 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "415" }, { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0413-01" ] }, { "cite": "678 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "354" }, { "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151090 ], "year": 2009, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0334-01" ] }, { "cite": "185 N.C. 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Dunstan, 256 N.C. 520, 524, 124 S.E.2d 574, 577 (1962)" }, { "page": "594" }, { "page": "594" }, { "page": "594" } ], "opinion_index": 1 }, { "cite": "337 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551316 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "333-34", "parenthetical": "quoting Masters v. 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Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986)" }, { "page": "413-14" }, { "page": "417" } ], "opinion_index": 1, "case_paths": [ "/nc/344/0411-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "893", "parenthetical": "quoting Tucker, 344 N.C. at 417, 474 S.E.2d at 130" }, { "page": "893" } ], "opinion_index": 1 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "36", "parenthetical": "quoting Tucker, 344 N.C. at 417, 474 S.E.2d at 130" }, { "page": "36" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0001-01" ] } ], "analysis": { "cardinality": 1249, "char_count": 50144, "ocr_confidence": 0.744, "pagerank": { "raw": 2.1512599379293085e-07, "percentile": 0.7685282037678645 }, "sha256": "05874c0b938e9b8f97e9d1a80f84900c80541e216ce4e6e70827327de4528c07", "simhash": "1:9a8a562a249f8458", "word_count": 8095 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge ERVIN concurs in part, dissents in part by separate opinion." ], "parties": [ "TYRONE WILLIAMS and WHF, INC. OF VIRGINIA, Plaintiff v. ANNITTIE PEABODY and PEABODY\u2019S HOME IMPROVEMENTS, INC., Defendants" ], "opinions": [ { "text": "THIGPEN, Judge.\nTyrone Williams (\u201cWilliams\u201d) and WHF, Inc. of Virginia (\u201cWHF\u201d) (together, \u201cPlaintiffs\u201d) filed suit against Annittie Peabody (\u201cPeabody\u201d) and Peabody\u2019s Home Improvements, Inc. (together \u201cDefendants\u201d) subsequent to a similar lawsuit involving some but not all of the same parties. Upon motion by Defendants, the trial court granted summary judgment in favor of Defendants on the grounds of res judicata and collateral estoppel. We must determine whether Plaintiffs\u2019 lawsuit was correctly dismissed pursuant to the doctrines of res judicata and collateral estoppel. We affirm the trial court\u2019s order dismissing Williams\u2019 lawsuit against Defendants. However, we reverse the trial court\u2019s order dismissing WHF\u2019s lawsuit against Defendants and remand for additional evidence.\nThe evidence of record tends to show that Williams and Crystal Williams were at all times relevant to these proceedings husband and wife and managers of Platinum Lions Group, LLC., and WHF, Inc. of Virginia. Peabody is the sole shareholder and officer of Peabody\u2019s Home Improvements, Inc.\nOn 3 April 2008, Williams changed the registered agent of Peabody\u2019s Home Improvements, Inc., from Peabody to Williams by allegedly forging Peabody\u2019s signature on a Change of Registered Office and/or Registered Agent form, which stated that Williams was the new registered agent and president of Peabody\u2019s Home Improvements, Inc.\nOn 1 October 2008, Williams, allegedly misrepresenting himself as the president of Peabody\u2019s Home Improvements, Inc., signed four general warranty deeds purportedly granting Platinum Lions Group, LLC, a fee simple interest in four properties owned by Peabody\u2019s Home Improvements, Inc. On 4 October 2008, Williams allegedly forged the signature of Crystal Williams, his wife and the president of Platinum Lions Group, LLC, on an additional four general warranty deeds referencing the same four properties, which supposedly granted Crystal Williams a fee simple interest in the properties. The record also contains one additional general warranty deed, filed on 3 April 2009, which purportedly conveyed title to three of the same four properties from Crystal Williams to WHF.\nOn 10 November 2008, Peabody\u2019s Home Improvements, Inc., filed a complaint and action to quiet title (File # 08 CVS 11281) (\u201coriginal lawsuit\u201d) against Williams, Crystal Williams, and Platinum Lions Group, LLC, alleging claims for fraud, conspiracy to commit fraud, and unfair and deceptive trade practices.\nOn 15 January 2009, Williams filed a motion to dismiss the complaint alleging the following: \u201c[T]he action . . . involve[d], at best, an intracorporate dispute between shareholders [of Peabody\u2019s Home Improvements, Inc.]\u201d; Peabody lacked standing and corporate authority to file the complaint; Williams was the president and sole shareholder of Peabody\u2019s Home Improvements, Inc.; Williams, as president of Peabody\u2019s Home Improvements, Inc., executed general warranty deeds conveying title to the four aforementioned properties; Williams \u201cdoes not desire that his wholly owned corporation . . . sue him and has not authorized it to sue him.\u201d Williams asserted no counterclaims.\nOn 12 March 2010, Williams filed a response to Peabody\u2019s request for admissions, in which Williams admitted he signed Peabody\u2019s name to the Change of Registered Office and/or Registered Agent form. However, Williams claimed to have signed it with Peabody\u2019s assent and permission.\nAlso on 12 March 2010, Williams filed an affidavit which ostensibly contradicted his assertions in the motion to dismiss by stating that Peabody\u2019s Home Improvements, Inc., is \u201csole[ly] operated by Annittie Peabodyf.]\u201d Williams also stated in the affidavit that he placed $100,000.00 in an account Peabody opened in the name of Peabody\u2019s Home Improvements, Inc., and these monies were used to purchase the four properties. Williams asserted that to quiet title such that Peabody\u2019s Home Improvements, Inc., owned the four properties would unjustly enrich Peabody and be grossly inequitable.\nPeabody\u2019s Home Improvements, Inc., filed a motion for summary judgment, which the trial court granted on 19 March 2010. Williams did not appeal this order.\nOn 24 March 2010, Plaintiffs filed a complaint (File # 10 CVS 2682) (\u201cpresent lawsuit\u201d) against Defendants, alleging unjust enrichment and requesting injunctive relief to restrain Defendants from selling the four properties.\nOn 1 June 2010, Defendants filed an answer and moved to dismiss Plaintiffs\u2019 complaint on grounds of res judicata and collateral estoppel. On 21 June 2010, the trial court entered an order granting summary judgment in favor of Defendants on grounds of res judicata and collateral estoppel. From this order, Plaintiffs appeal.\nI: Summary Judgment\nPlaintiffs\u2019 argument on appeal is that the trial court erred by entering summary judgment against Plaintiffs because the doctrines of res judicata and collateral estoppel do not apply.\nSummary judgment is properly granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009). \u201cA defendant may show entitlement to summary judgment by: (1) proving that an essential element of the plaintiff\u2019s case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.\u201d Carcano v. JBSS, LLC, 200 N.C. App. 162, 166, 684 S.E.2d 41, 46 (2009) (quotation omitted). Res judicata and collateral estoppel are affirmative defenses. N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 374, 649 S.E.2d 14, 26 (2007).\n\u201cAn appeal from an order granting summary judgment solely raises issues of whether on the face of the record there is any genuine issue of material fact,- and whether the prevailing party is entitled to judgment as a matter of law.\u201d Carcano, 200 N.C. App. at 166, 684 S.E.2d at 46. (citation omitted). \u201cWe review a trial court\u2019s order granting or denying summary judgment de novo.\u201d Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009). \u201cUnder a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.\u201d Id. (quotation omitted). Our review, however, \u201cis necessarily limited to whether the trial court\u2019s conclusions as to the[] questions of law were correct ones.\u201d Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987).\nIn the trial court\u2019s order granting Defendants\u2019 motion for summary judgment, the trial court made the following conclusion:\nThe court finds as a matter of law and pursuant to the doctrin\u00e9is] of res judicata and collateral estoppel that all issues involving the parties related to this subject suit were decided in Peabody\u2019s Home Improvements Inc. v. Tryone Williams et al. (Cumberland County File No.: 08-CVS-11281) and the Plaintiff is therefore estopped from asserting this new lawsuit.\nAs such, our review is limited to whether the doctrines of res judicata and collateral estoppel were correctly applied.\nII: Res Judicata and Collateral Estoppel\n\u201cThe doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) are companion doctrines which have been developed by the Courts for the dual purposes of protecting litigants from the burden of relitigating previously decided matters and promoting judicial economy by preventing needless litigation.\u201d Little v. Hamel, 134 N.C. App. 485, 487, 517 S.E.2d 901, 902 (1999) (quotation omitted).\n\u201cUnder the doctrine of res judicata or \u2018claim preclusion,\u2019 a final judgment on the merits in one action precludes a second suit based on the same cause of action between the same parties or their privies.\u201d Whitacre P\u2019ship v. BioSignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004) (citation omitted). \u201cFor res judicata to apply, a party must show that the previous suit resulted in a final judgment on the merits, that the same cause of action is involved, and that both the party asserting res judicata and the party against whom res judicata is asserted were either parties or stand in privity with parties.\u201d State ex rel. Tucker v. Frinzi, 344 N.C. 411, 413-14, 474 S.E.2d 127, 128 (1996) (quotation omitted). \u201cThe doctrine prevents the relitigation of all matters ... that were or should have been adjudicated in the prior action.\u201d Whitacre P\u2019ship, 358 N.C. at 15, 591 S.E.2d at 880 (quotation omitted).\nUnder the doctrine of collateral estoppel, or issue preclusion, \u201ca final judgment on the merits prevents relitigation of issues actually litigated and necessary to the outcome of the prior action in a later suit involving a different cause of action between the parties or their privies.\u201d Frinzi, 344 N.C. at 414, 474 S.E.2d at 128. A party asserting collateral estoppel is required to show that \u201cthe earlier suit resulted in a final judgment on the merits, that the issue in question was identical to an issue actually litigated and necessary to the judgment, and that both the party asserting collateral estoppel and the party against whom collateral estoppel is asserted were either parties to the earlier suit or were in privity with parties.\u201d Id. at 414, 474 S.E.2d at 128-29.\n\u201cIn general, a cause of action determined by an order for summary judgment is a final judgment on the merits.\u201d Green v. Dixon, 137 N.C. App. 305, 310, 528 S.E.2d 51, 55, aff'd per curiam, 352 N.C. 666, 535 S.E.2d 356 (2000). The parties in the present case do not dispute that a final judgment on the merits was entered in the original lawsuit.\ni: Collateral Estoppel\nWe first address whether the trial court erred by barring Plaintiffs\u2019 action on grounds of collateral estoppel. We conclude the trial court erred.\nFor purposes of collateral estoppel, \u201cthe prior judgment serves as a bar only as to issues actually litigated and determined in the original action.\u201d City of Asheville v. State, 192 N.C. App. 1, 17, 665 S.E.2d 103, 117 (2008), appeal dismissed, disc. review denied, 363 N.C. 123, 672 S.E.2d 685 (2009) (quotation omitted) (emphasis in original). \u201c[A]n issue is actually litigated, for purposes of collateral estoppel or issue preclusion, if it is properly raised in the pleadings or otherwise submitted for determination and [is] in fact determined.\u201d Id. (quotation omitted). \u201cA very close examination of matters actually litigated must be made in order to determine if the underlying issues are in fact identical[;] [i]f they are not identical, then the doctrine of collateral estoppel does not apply.\u201d Id.\nIn the original lawsuit in this case, Peabody\u2019s Home Improvements, Inc., brought suit against Williams, Crystal Williams, and Platinum Lions Group, LLC, alleging causes of action to quiet title, for unfair and deceptive trade practices, fraud, and conspiracy to commit fraud. The defendants in the original lawsuit did not assert counterclaims. In the present lawsuit, Plaintiffs brought suit against Defendants alleging unjust enrichment and praying for injunctive relief. No determination was made regarding unjust enrichment or injunctive relief in the original final judgment on the merits. We conclude the issues in the present lawsuit were not actually litigated in the original lawsuit, and therefore, collateral estoppel does not bar Plaintiffs\u2019 action. The trial court erred by entering summary judgment because Plaintiffs\u2019 claims were barred by collateral estoppel.\nii: Res Judicata: Estoppel of Claims\nWe next address whether Plaintiffs\u2019 claims were estopped on principles of res judicata. Res judicata \u201cbars every ground of recovery or defense which was actually presented or which could have been presented in the previous action.\u201d Goins v. Cone Mills Corp., 90 N.C. App. 90, 93, 367 S.E.2d 335, 336-37, disc. rev. denied, 323 N.C. 173, 373 S.E.2d 108 (1988). A final judgment \u201coperates as an estoppel not only as to all matters actually determined or litigated in the prior proceeding, but also as to all relevant and material matters within the scope of the proceeding which the parties, in the exercise of reasonable diligence, could and should have brought forward for determination.\u201d Rodgers Builders, Inc. v. McQueen, 76 N.C. App. 16, 22, 331 S.E.2d 726, 730 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986) (citation' omitted). \u201cA party is required to bring forth the whole case at one time and will not be permitted to split the claim or divide the grounds for recovery; thus, a party will not be permitted, except in special circumstances, to reopen the subject of the . . . litigation with respect to matters which might have been brought forward in the previous proceeding.\u201d Id. at 23, 331 S.E.2d at 730. \u201cThe defense of res judicata may not be avoided by shifting legal theories or asserting a new or different ground for relief[.]\u201d Id. at 30, 331 S.E.2d at 735.\nThe plea of res adjudicata applies,... not only to the points upon which the court was required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject in litigation and which the parties, exercising reasonable diligence, might have brought forward at the time and determined respecting it.\nEdwards v. Edwards, 118 N.C. App. 464, 472, 456 S.E.2d 126, 131 (1995) (quotation omitted).\nPlaintiffs argue on appeal that \u201cthe issues in the first suit... were different!)] \u2022 \u2022 \u2022 and the issues raised in the [present lawsuit] were not relevant and material to the first ligitationf.]\u201d We are not persuaded. At the heart of both the original and present lawsuits lies a dispute regarding the four properties. In the original lawsuit, Peabody\u2019s Home Improvements, Inc., alleged the deeds conveying title were \u201cdeceptively and fraudulently executed].]\u201d In the present lawsuit, Plaintiffs alleged \u201cthe funds of the Plaintiffs were the sole source of revenue for acquisition of the properties.\u201d We believe Plaintiffs\u2019 claims in the present lawsuit are claims which Plaintiffs, exercising reasonable diligence, might have brought forward at the time of the original lawsuit. Thus, assuming arguendo Plaintiffs and Defendants in the present lawsuit satisfy the requirement of identity of parties, Plaintiffs\u2019 claims are barred by res judicata.\niii: Res Judicata: Identity of Parties\nWe now address whether Plaintiffs and Defendants in the present lawsuit are the same or in privity with the parties to the original lawsuit. \u201c[B]oth the party asserting res judicata and the party against whom res judicata is asserted [must be] either parties or stand in privity with parties\u201d to the original action. Frinzi, 344 N.C. at 414, 474 S.E.2d at 128. \u201cIn general, privity involves a person so identified in interest with another that he represents the same legal right.\u201d Whitacre P\u2019ship, 358 N.C. at 36, 591 S.E.2d at 893 (quotation omitted). \u201cAlthough the meaning of \u2018privity\u2019 has proven to be elusive, and there is no definition of the word . . . which can be applied in all cases, the prevailing definition in our cases, at least in the context of res judicataf,] ... is that privity denotes a mutual or successive relationship to the same rights of property.\u201d Id. (quotation omitted). \u201cIn determining whether such a privity relation exists, courts will look beyond the nominal party whose name appears on the record as plaintiff and consider the legal questions raised as they may affect the real party or parties in interest.\u201d Id.\nThe mere fact that one is a shareholder or officer of a corporation is not sufficient to establish privity for purposes of res judicata between the shareholder or officer and the corporation. Troy Lumber Co. v. Hunt, 251 N.C. 624, 627, 112 S.E.2d 132, 135 (1960).\nHowever, there is an exception to the general rule requiring identity of parties:\nA person who is not a party but who controls an action, individually or in cooperation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary interest or financial interest in the judgment or in the determination of a question of fact or a question of law with reference to the same subject matter, or transactions; if the other party has notice of his participation, the other party is equally bound.\nThompson v. Lassiter, 246 N.C. 34, 39, 97 S.E.2d 492, 496 (1957) (emphasis in original); see also Smoky Mountain Enterprises, Inc. v. Rose, 283 N.C. 373, 196 S.E.2d 189 (1973). Smoky Mountain Enterprises and Troy Lumber Co. address this exception in the context of corporations. In both Smoky Mountain Enterprises and Troy Lumber Co., the North Carolina Supreme Court placed emphasis on the shareholders of the corporations in determining whether an individual had \u201ccontrol\u201d for purposes of applying the Lassiter exception to the rule of privity. Smoky Mountain Enterprises, Inc., 283 N.C. at 377, 196 S.E.2d at 192 (applying the exception in part because the individual was the president and owned all the stock of the corporate party); Troy Lumber Co., 251 N.C. at 628, 112 S.E.2d at 136 (declining to apply the exception in part because \u201c[the corporation] has other shareholders than [the individual]\u201d).\nIn the present case, the parties to the original lawsuit (File # 08 CVS 11281) were Peabody\u2019s Home Improvements, Inc., Williams, Crystal Williams, and Platinum Lions Group, LLC. The parties to the present lawsuit (File # 10 CVS 2682) are Williams, WHF, Peabody, and Peabody\u2019s Home Improvements, Inc. Both Peabody and WHF are new parties in the present lawsuit. Although evidence of record tends to show that Williams is the chief operating officer of WHF, this fact alone is insufficient to create privity between WHF and Williams. See Troy Lumber Co., 251 N.C. at 627, 112 S.E.2d at 135 (holding, \u201c[t]he admission that F. L. Taylor is the controlling stockholder of Troy Lumber Company, is chairman of its board of directors, [is] President, and has complete charge of its operations and business, is insufficient to establish identity or privity between him and the corporation for the purpose of res judicata\"). Likewise, the evidence surrounding Peabody\u2019s roles in ownership and management of Peabody\u2019s Home Improvements, Inc., is insufficient to create privity between Peabody and Peabody\u2019s Home Improvements, Inc. Id. Therefore, we must determine whether the Lassiter exception to the rule requiring privity of identities applies to Peabody and Peabody\u2019s Home Improvements, Inc., and to Williams and WHF.\na: Peabody and Peabody\u2019s Home Improvements, Inc.\nWe first consider Peabody\u2019s \u201ccontrol\u201d of the original lawsuit and the present lawsuit, which is the threshold requirement of the exception to the rule requiring privity of identities. See Lassiter, 246 N.C. 34, 39, 97 S.E.2d 492, 496 (stating, \u201c[a] person who is not a party but who controls an action, individually or in cooperation with others ...\u201d) (emphasis added). Williams\u2019 affidavit provides uncontroverted evidence that Peabody\u2019s Home Improvements, Inc., is \u201csolely operated by Anittie Peabody\u201d; is \u201cwithout real directors or shareholders\u201d; and is \u201cthe alter ego of Anittie Peabody.\u201d We believe this is sufficient to satisfy the control element of the Lassiter exception to the rule requiring privity. See Smoky Mountain Enterprises, Inc., 283 N.C. 373, 196 S.E.2d 189.\nWe next address the second requirement of the Lassiter exception, whether Peabody \u201chas a proprietary interest or financial interest in the judgment!-]\u201d Lassiter, 246 N.C. at 39, 97 S.E.2d at 496. Peabody\u2019s Home Improvements, Inc., owned the four properties central to both the original and present lawsuits prior to the properties being purportedly conveyed to Platinum Lions Group, LLC, by Williams. There fore, the corporate party, Peabody\u2019s Home Improvements, Inc., has a financial interest in the judgment. Because the evidence shows Peabody\u2019s \u201ccontrol\u201d of the corporate party, Peabody, individually, also has a financial interest in the judgment.\nWe finally address the third requirement of the Lassiter exception, whether Peabody has an interest \u201cin the determination of a question of fact or a question of law with reference to the same subject matter, or transactions!.]\u201d Lassiter, 246 N.C. at 39, 97 S.E.2d at 496. Because this is a dispute regarding four properties, and because Peabody\u2019s Home Improvements, Inc., alleged in the original lawsuit the deeds conveying title were \u201cdeceptively and fraudulently executed],]\u201d we believe Peabody and Peabody\u2019s Home Improvements, Inc., have an interest in the determination of questions of law and fact in this case.\nBecause the foregoing evidence supports the requirements set forth in Lassiter for application of the exception to the rule requiring privity, we conclude the Lassiter exception applies to Peabody and Peabody\u2019s Home Improvements, Inc. Therefore, assuming arguendo the Lassiter exception also applies to Williams and WHF, the identity of parties requirement is met, such that the trial court did not err in concluding the doctrine of res judicata operated to estop Plaintiffs\u2019 action against Defendants. We must next determine whether the Lassiter exception, in fact, applies to Williams and WHF.\nb: Williams, individually\nRegardless of whether there is evidence of control to support the Lassiter exception as to WHF, Williams was a party to the original lawsuit and also a party to the present lawsuit. Satisfying the Lassiter exception to the rule requiring privity is not necessary to our determination of whether res judicata applies to Williams, individually. Because Williams was a party to both lawsuits, and because the evidence supports application of the Lassiter exception to Peabody and Peabody\u2019s Home Improvements, Inc., the identity of parties requirement for application of res judicata to Williams\u2019 lawsuit against Defendants in the present case is met. Frinzi, 344 N.C. at 414, 474 S.E.2d at 128 (\u201c[B]oth the party asserting res judicata and the party against whom res judicata is asserted [must be] either parties or stand in privity with parties\u201d to the original action\u201d) (Emphasis added). Res judicata thus applies to Williams\u2019 lawsuit against Defendants, and the trial court did not err by dismissing his lawsuit pursuant to the doctrine of res judicata. We affirm this portion of the trial court\u2019s order.\nc: Williams and WHF\nWe must next determine whether the Lassiter exception applies to WHF. We first consider Williams\u2019 \u201ccontrol\u201d of the original lawsuit and the present lawsuit, which is the threshold requirement of the exception to the rule requiring privity of identities. See Lassiter, 246 N.C. 34, 39, 97 S.E.2d 492, 496.\nWe believe Smoky Mountain Enterprises, Inc., 283 N.C. 373, 196 S.E.2d 189, is instructive in this case. In Smoky Mountain Enterprises, Inc., W.F. Burbank was the president and sole stockholder of Smoky Mountain Enterprises, Inc. Id. at 374, 196 S.E.2d at 190. Burbank and Jesse Rose signed a paper writing purporting to be a sales contract, which provided for the sale of all the assets of Smoky Mountain Enterprises, Inc. Burbank\u2019s signature on the contract did not denote his corporate capacity and was not attested to by any other officer of Smoky Mountain Enterprises, Inc. Id. On 27 February 1970, Burbank individually instituted an action against the defendant, Rose, for breach of the contract. The trial court granted the defendant\u2019s motion for summary judgment and dismissed that action with prejudice. Id. at 375, 196 S.E.2d at 191. On 7 October 1971, Smoky Mountain Enterprises, Inc., as the plaintiff, filed a complaint against Rose, alleging the same breach of contract. The North Carolina Supreme Court held the second suit was barred by the doctrine of res judicata. Id. at 378, 196 S.E.2d at 193.\nIn Smoky Mountain Enterprises, Inc., unlike the present case, Burbank\u2019s control of the corporation and of both the original and subsequent lawsuits, was sufficiently supported by evidence. The Court concluded, \u201cBurbank was personally in control of the action before Judge Martin in Superior Court and the present actionf;] [h]e had the same proprietary interest or financial interest in the judgment in both cases, and was equally concerned with the determination of questions of fact or questions of law pertaining to the contract which was involved in both actions.\u201d Id. at 377, 196 S.E.2d at 192. Burbank\u2019s control of the original and subsequent actions was shown, in part, by evidence that Burbank was the president and owned all the stock of Smoky Mountain Enterprises, Inc. The Court emphasized Burbank\u2019s testimony: \u201cOn June 26, 1969, I was President of Smoky Mountain Enterprises, Inc., a corporation in which I owned all the stock.\u201d Id. at 376, 196 S.E.2d at 192. The Court also emphasized the fact that central to both the original and subsequent lawsuit was a contract between Smoky Mountain Enterprises, Inc., and the defendant, which was signed by Burbank. The Court held that res judicata required that \u201cSmoky Mountain Enterprises, Inc., is bound by the judgment of [the previous action][,]\u201d which was instituted by Burbank, individually. Id. at 378, 196 S.E.2d at 192.\nIn the present case, the only evidence of record pertaining to Williams\u2019 control of the original and present lawsuits, particularly the action by WHF against Defendants, is that Williams is the chief operating officer of WHF. There is no evidence of record that Williams is the sole or controlling shareholder of WHF, such that Williams was in control of WHF, and thereby, in control of WHF\u2019s action against Defendants. The record is also silent on the question of whether there are other shareholders of WHF. Unlike in Smoky Mountain Enterprises, Inc. where the issue of control was clear, the evidence in this case shows, at most, that Williams was WHF\u2019s chief operating officer. Troy Lumber Co. holds this alone is insufficient to create privity. We believe a logical extension of Smoky Mountain Enterprises, Inc. and Troy Lumber Co., is that this alone is insufficient to establish control for purposes of suspension of the rule of privity. Because there is no evidence regarding the shareholders or other officers of WHF of record, and because the sole evidence of control is that Williams is WHF\u2019s chief operating officer, we believe this case is distinguishable from Smoky Mountain Enterprises, Inc. We believe the evidence in this case is insufficient to invoke the exception to the rule requiring privity as to WHF. If we concluded otherwise, the rule of privity for purposes of res judicata would be suspended in every case involving a chief operating officer of a corporation and the respective corporation, provided the remaining requirements in Lassiter, apart from \u201ccontrol,\u201d were met.\nWe next address the second requirement of the Lassiter exception to the rule requiring identity of parties, whether WHF \u201chas a proprietary interest or financial interest in the judgment[.]\u201d Lassiter, 246 N.C. at 39, 97 S.E.2d at 496; At the heart of both the original and present lawsuits lies a dispute regarding the four properties. In the original lawsuit, Peabody\u2019s Home Improvements, Inc., alleged the deeds conveying title were \u201cdeceptively and fraudulently executed[.]\u201d In the present lawsuit, Plaintiffs alleged \u201cthe funds of the Plaintiffs were the sole source of revenue for acquisition of the properties.\u201d Moreover, the record contains a general warranty deed purporting to convey three of the four aforementioned properties from Crystal Williams to WHF. Based on the foregoing, we conclude WHF has a financial interest in the judgment.\nWe finally address the third requirement of the Lassiter exception, whether WHF has an interest \u201cin the determination of a question of fact or a question of law with reference to the same subject matter, or transactions[.]\u201d Lassiter, 246 N.C. at 39, 97 S.E.2d at 496. Again, because this is a dispute regarding the four properties, because Plaintiffs alleged that Plaintiffs\u2019 funds \u201cwere the sole source of revenue for acquisition of the propertiesf,]\u201d and because three of the properties were purportedly conveyed to WHF, we conclude WHF has an interest in the determination of questions of fact and law in reference to the subject matter in this case.\nWhile the evidence supports the second and third requirements set forth in Lassiter \u2014 that WHF has a \u201cfinancial interest\u201d and an interest in the \u201cdetermination of a question of fact or a question of law with reference to the same subject matter\u201d \u2014 the evidence is insufficient to support the control requirement of the Lassiter exception to the rule requiring privity. Therefore, we must conclude the Lassiter exception cannot apply to WHF. Based on the foregoing, we conclude there is a genuine issue as to whether the exception to the rule of privity applies to WHF because the evidence in this case is insufficient to satisfy the requirement of control. Therefore, we further conclude the trial court erred by granting summary judgment barring WHF\u2019s complaint on grounds of res judicata.\nThe dissenting opinion places strong emphasis on this Court\u2019s opinion in Cline v. McCullen, 148 N.C. App. 147, 557 S.E.2d 588 (2001), in its determination that the identity of parties requirement is met with regard to WHF and Williams. We believe Cline is neither contrary to nor concordant with our holding on the issue of identity of parties in the present case: Cline is simply inapplicable because the opinion in Cline does not involve corporations, and the Cline Court does not apply the Lassiter exception to the rule requiring privity of parties.\nIll: Conclusion\nIn summary, we conclude that the doctrine of collateral estoppel does not apply to the present case, and the trial court erred by concluding Plaintiffs\u2019 action was barred by collateral estoppel. We further conclude the trial court did not err in applying the doctrine of res judicata to dismiss Williams\u2019 lawsuit against Defendants. However, in considering the application of res judicata to WHF\u2019s lawsuit against Defendants \u2014 particularly, the requirement of identity of parties \u2014 we cannot presume facts not in the record regarding Williams\u2019 control of the original and present lawsuits. We believe these facts are necessary in light of the holdings in Smoky Mountain Enterprises and Troy Lumber Co. As the evidence at trial was inadequate for the trial court to conclude the doctrine of res judicata applied to bar WHF\u2019s action, we conclude the trial court erred by doing so. We reverse this portion of the trial court\u2019s order on summary judgment and remand this case to the trial court to determine whether Williams had control of WHF and its action against Defendants.\nREVERSED and REMANDED.\nJudge CALABRIA concurs.\nJudge ERVIN concurs in part, dissents in part by separate opinion.\n. But see Thomas M. McInnis & Associates, Inc. v. Hall, 318 N.C. 421, 432-34, 349 S.E.2d 552, 559-60 (1986) (stating, \u201c[t]he modern trend in both federal and state courts is to abandon the requirement of mutuality for collateral estoppel, subject to certain exceptions, as long as the party to be collaterally estopped had a full and fair opportunity to litigate the issue in the earlier action[,]\u201d and holding, \u201cwe see no good reason for continuing to require mutuality of estoppel in cases like this case\u201d).\n. We note that both Crystal Williams and Platinum Lions Group, LLC, were parties to the original lawsuit but not to the present lawsuit. Their absence in the present case is immaterial, as they are neither a \u201cparty asserting res judicata\u201d nor a \u201cparty against whom res judicata is asserted].]\u201d Frinzi, 344 N.C. at 414, 474 S.E.2d at 128.\n. By comparison, although not authoritative in the context of res judicata, the definition of the element of control in the instrumentality rule for purposes of piercing the corporate veil offers some instruction on this point. It requires the following: \u201cControl, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practices in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will, or existence of its own.\u201d Glenn v. Wagner, 313 N.C. 450, 455, 329 S.E.2d 326, 330 (1985) (quotation omitted).\n. See Johnson v. Schultz, 364 N.C. 90, 96, 691 S.E.2d 701, 706 (2010) (affirming this Court\u2019s reversal of an order on summary judgment, stating that \u201ca factual inquiry must be conducted to determine whether [the attorney] also represented sellers during the closing process],]\u201d and holding that \u201cwe remand this case to the trial court to determine if an attorney-client relationship existed between sellers and [the attorney]\u201d).\n. We do not address Defendants\u2019 remaining arguments on appeal because our review is limited to the trial court\u2019s conclusion of law in the order granting summary judgment. Ellis, 319 N.C. at 415, 355 S.E.2d at 481.", "type": "majority", "author": "THIGPEN, Judge." }, { "text": "ERVIN, Judge,\nconcurring in part and dissenting in part.\nAlthough I concur in the Court\u2019s treatment of the \u201cidentity of claims\u201d issue, its determination that the necessary \u201cidentity of parties\u201d exists between Ms. Peabody and Peabody Home Improvements, and its decision to affirm the trial court\u2019s conclusion that the claims asserted by Mr. Williams against Ms. Peabody and Peabody Home Improvements are barred by the doctrine of res judicata, I am unable to reach a similar conclusion with respect to its discussion of the \u201cidentity of parties\u201d question as applied to Mr. Williams and WHF. After carefully reviewing the record in light of the applicable law, I believe that the trial court correctly determined that the necessary \u201cidentity of parties\u201d existed in this case with respect to Mr. Williams and WHF and, for that reason, properly granted summary judgment against both Plaintiffs and in favor of both Defendants on res judicata grounds. Given my conclusion that this case can be fully resolved by applying res judicata principles, I see no need to address the extent to which Plaintiffs\u2019 claims are collaterally estopped by determinations made during the course of the prior litigation between certain of the parties to this case. As a result, I concur in the Court\u2019s decision in part and dissent in part.\n\u201cUnder the doctrine of res judicata, or claim preclusion, \u2018a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them.\u2019 \u201d State ex rel. Tucker v. Frinzi, 344 N.C. 411, 413, 474 S.E.2d 127, 128 (1996) (quoting Thomas M. McInnis & Assoc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986)). \u201cFor res judicata to apply, a party must \u2018show that the previous suit resulted in a final judgment on the merits, that the same cause of action is involved, and that both [the party asserting res judicata and the party against whom res judicata is asserted] were either parties or stand in privity with parties.\u2019 \u201d Tucker, 344 N.C. at 413-14, 474 S.E.2d at 128 (quoting McInnis, 318 N.C. at 429, 349 S.E.2d at 557). As a result of the fact that my only disagreement with the Court\u2019s discussion of the res judicata issue stems from its discussion of the \u201cidentity of parties\u201d issue and its conclusion that Mr. Williams\u2019 participation in the prior litigation does not operate to bar the claims that have been asserted on behalf of WHF, I will focus the remainder of this concurring and dissenting opinion on that issue.\n\u201cThe meaning of \u201cprivity\u201d for res judicata purposes may be elusive.\u201d Settle v. Beasley, 309 N.C. 616, 620, 308 S.E.2d 288, 290 (1983). \u201cIndeed, \u2018there is no definition of the word \u201cprivity\u201d which can be applied in all cases.\u2019 \u201d Hales v. N.C. Insurance Guaranty Assn., 337 N.C. 329, 333-34, 445 S.E.2d 590, 594 (1994) (quoting Masters v. Dunstan, 256 N.C. 520, 524, 124 S.E.2d 574, 577 (1962)). \u201cIn general, \u2018privity involves a person so identified in interest with another that he represents the same legal right.\u2019 \u201d Whitacre P\u2019ship v. BioSignia, Inc., 358 N.C. 1, 36, 591 S.E.2d 870, 893 (2004) (quoting Tucker, 344 N.C. at 417, 474 S.E.2d at 130). \u201cThe prevailing definition that has emerged from our cases is that \u2018privity\u2019 for purposes of res judicata and collateral estoppel \u2018denotes a mutual or successive relationship to the same rights of property.\u2019 \u201d Hales, 337 N.C. at 334, 445 S.E.2d at 594 (quoting Settle, 309 N.C. at 620, 308 S.E.2d at 290) (other citations omitted); see also Cline v. McCullen, 148 N.C. App. 147, 150-51, 557 S.E.2d 588, 591 (2001) (holding that an action brought by a bonding business was barred by a prior judgment entered in a proceeding brought by a bond runner employed by that bonding business on the grounds that the bond runner \u201cwas in essence suing for the lost profits of [the bonding business] from whom he derived his commission,\u201d that \u201cthis successive or mutual relationship in the same rights in property establishes that the interests of both [the bond runner and the bonding business were] so intertwined that privity exists between them,\u201d and that the bond runner \u201chad a substantial interest [stemming from the sharing of commissions that] constituted a proprietary interest in the judgment\u201d).\nIn addition:\nA person who is not a party but who controls an action, individually or in cooperation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary interest or financial interest in the judgment or in the determination of a question of fact or a question of law with reference to the same subject matter, or transactions-, if the other party has notice of his participation, the other party is equally bound.\nThompson v. Lassiter, 246 N.C. 34, 39, 97 S.E.2d 492, 496 (1957) (emphasis in original) (quoting Carolina Power & Light Co. v. Merrimack Mut. Fire Ins. Co., 238 N.C. 679, 692, 79 S.E.2d 167, 176 (1953) (quoting Restatement of Judgments \u00a7 84)). Put another way:\n\u201cThe rule is stated in 50 C.J.S. 318, as follows: \u2018A person who is neither a party nor privy to an action may be concluded by the judgment therein if he openly and actively, and with respect to some interest of his own, assumes and manages the defense of the action. A person who is not made a defendant of record and is not in privity with a party to the action may, as a general rule, subject himself to be concluded by the result of the litigation if he openly and actively, and with respect to some interest of his own, assumes and manages the defense of the action, although there is some authority to the contrary.\u2019 \u201d\nThompson, 246 N.C. at 39, 97 S.E.2d at 496. As a result, in a case in which the plaintiff in the former action \u201cis the president and owns all of the stock of [the plaintiff in the present action],\u201d \u201cwas personally in control of [both the former action and the present action],\u201d \u201chad the same proprietary interest or financial interest in the judgment in both cases, and was equally concerned with the determination of questions of fact or questions of law pertaining to the contract which was involved in both actions,\u201d the plaintiff in the second action is bound by a judgment rendered against the plaintiff in the prior action even if the parties in question are not in \u201cprivity\u201d with each other as that concept is utilized in our res judicata jurisprudence. Enterprises v. Rose, 283 N.C. 373, 377, 196 S.E.2d 189, 192 (1973); see also Rodgers Builders v. McQueen, 76 N.C. App. 16, 29, 331 S.E.2d 726, 734 (1985) (holding that an arbitration award was entitled to res judicata effect against an individual \u201cnot named as a party to the arbitration\u201d because \u201che had a strong financial interest in the determination of the issues there because of his ownership interests\u201d in entities that were parties to the arbitration and because \u201che was an active and controlling participant in the arbitration\u201d), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986).\nIn reaching the conclusion that WHF is not bound by the prior judgment in favor of Peabody Home Improvements and adverse to Mr. Williams, the Court focuses on its determination that the record does not contain sufficient evidence that Mr. Williams controlled WHF. In essence, the Court concludes that the trial court\u2019s order with respect to WHF should be reversed on the grounds that res judicata principles have no application to cases involving individuals or entities that were not parties to the prior case in the absence of a finding that one of these individuals or entities \u201ccontrolled\u201d the other. I am unable to agree with the Court\u2019s exclusive focus upon the presence or absence of \u201ccontrol\u201d because I believe that a proper resolution of the \u201cidentity of parties\u201d issue in cases in which there is not a literal identity of parties does not hinge exclusively on the issue of \u201ccontrol.\u201d Instead, I believe that the relevant decisions of the Supreme Court and this Court require us to engage in a two-step analysis in such cases. First, we must determine whether Mr. Williams and WHF were \u201cso identified in interest with another that [they] represent] the same legal right[s],\u201d Whitacre, 358 N.C. at 36, 591 S.E.2d at 893, such that they had \u201c \u2018a mutual or successive relationship to the same rights of property.\u2019 \u201d Hales, 337 N.C. at 334, 445 S.E.2d at 594 (quoting Settle, 309 N.C. at 620, 308 S.E.2d at 290). In the event that the answer to that initial question is in the affirmative, we need not reach the \u201ccontrol\u201d issue upon which the Court focuses its attention. Cline, 148 N.C. App. at 150-51, 557 S.E.2d at 591 (stating that, \u201c[although there is insufficient evidence to show that plaintiff controlled the prior litigation . . ., the court\u2019s findings do establish that plaintiff had a substantial interest, which in light of the fifty-fifty sharing of commission [s], constituted a proprietary interest in the judgment\u201d sufficient to trigger a res judicata bar). In the event that the answer to the first question is negative, we must determine whether res judicata principles should be deemed applicable on the basis of \u201ccontrol.\u201d Unless one adopts an approach like that which I have outlined and rejects the approach adopted by the Court, the concept of \u201cprivity\u201d becomes co-extensive with the concept of \u201ccontrol,\u201d a result which finds no support in the applicable decisional law, is directly contrary to this Court\u2019s decision in Cline, and which the Court makes no effort to explain or defend.\nThe undisputed evidence before the trial court clearly demonstrates that the legal interests asserted by Mr. Williams and WHF were identical. According to the allegations of the verified complaint filed in the present case, the properties at issue in this litigation \u201cwere acquired with funds belonging to the Plaintiffs\u201d and \u201call funds for improvements and/or repairs to the above described real properties were derived from the Plaintiffs.\u201d Simply put, the allegations set out in the Plaintiffs\u2019 complaint describe the rights of Mr. Williams and WHF as one and the same. For that reason, Mr. Williams and WHF are, in fact, asserting the \u201csame legal rights,\u201d a determination which compels the conclusion that the claims asserted by Mr. Williams and WHF rest on a \u201c \u2018mutual or successive relationship to the same rights of property,\u2019 \u201d Hales, 337 N.C. at 334, 445 S.E.2d at 594 (quoting Settle, 309 N.C. at 620, 308 S.E.2d at 290), sufficient to establish the necessary privity for res judicata purposes. As a result, I believe that the undisputed evidence before the trial court at the time of the summary judgment hearing demonstrated the existence of a sufficient identity of legal interests between Mr. Williams and WHF to support application of the doctrine of res judicata for the purpose of barring Plaintiffs\u2019 claims in this case.\nThus, I believe that the trial court correctly granted summary judgment in favor of both Defendants and against both Plaintiffs and respectfully dissent from the Court\u2019s determination that the necessary \u201cidentity of parties\u201d between Mr. Williams and WHG needed to support an affirmance of the trial court\u2019s order in its entirety did not exist. In addition, I do not believe, given my conclusion that we should affirm the trial court\u2019s decision on res judicata grounds, that we need to determine whether a similar result should be reached on the basis of collateral estoppel principles. I do, however, concur in the Court\u2019s discussion of the \u201cidentity of claims\u201d component of the required res judicata analysis, in the Court\u2019s determination that the necessary \u201cidentity of parties\u201d exists between Ms. Peabody and Peabody Home Improvements, and in the Court\u2019s decision to affirm the trial court\u2019s determination that Mr. Williams\u2019 claims should be dismissed on res judicata grounds. As a result, I concur in the Court\u2019s opinion in part and dissent in part.\n. In its opinion, the Court concludes that the undisputed record evidence shows that Ms. Peabody controlled Peabody Home Improvements to such an extent as to render the two of them \u201cidentical\u201d for res judicata purposes. As a result of the fact that I agree with the Court\u2019s conclusion to that effect, I see no need to address the extent, if any, to which Ms. Peabody and Peabody Home Improvement were asserting the same legal rights, thereby obviating any need for a \u201ccontrol\u201d analysis.\n. Although Cline involved a proprietorship rather than a corporation, I do not believe that this distinction is a material one, since both Cline and the present case deal with the res judicata effect of a litigation brought by an affiliated individual on subsequent litigation brought by a business, or vice versa.\n. The form of analysis adopted by the Court is also substantially undercut by Troy Lumber, in which the Supreme Court held that res judicata effect should not be afforded to a judgment rendered in a previous personal injury action in a subsequent property damage case brought on behalf of a corporation arising from the same accident despite the fact that the personal injury case was prosecuted by the corporate president, chairman of the board, and controlling stockholder acting in his individual capacity. In direct conflict with the Court\u2019s \u201ccontrol-only\u201d approach to resolving \u201cidentity of parties\u201d issues, the Supreme Court found that the judgment entered in the individual plaintiff\u2019s personal injury suit was not entitled to res judicata effect despite the fact that he \u201chas at all times since the institution of the [property damage] action had control of it, as he also had control over his\u201d individual personal injury claim. [Troy] Lumber Co. v. Hunt, 251 N.C. 624, 626, 112 S.E.2d 132, 134 (1960).\n. For the reasons set forth in the text, I do not believe that we need to address the \u201ccontrol\u201d issue in order to properly resolve this case. In the event that \u201ccontrol\u201d is, as the Court suggests, critical to the making of a proper decision, I question the correctness of the Court\u2019s conclusion that the person designated as the chief operating officer of a corporate entity is not in \u201ccontrol\u201d of that corporation for res judicata purposes. Although the Court cites Troy Lumber fox the proposition that \u201c[t]he mere fact that one is a shareholder or officer of a corporation is not sufficient to establish privity for purposes of res judicata between the shareholder or officer and the corporation,\u201d I do not believe that Troy Lumber, when read in context, supports the Court\u2019s conclusion with respect to the \u201ccontrol\u201d issue. In fact, the Supreme Court held in Troy Lumber that the corporate officer involved in that case did, in fact, control litigation brought by the corporation and found res judicata principles inapplicable in that case for an entirely different reason. However, given my conclusion that the necessary \u201cidentity of parties\u201d exists based on other considerations, I express no opinion concerning the extent, if any, to which the record shows that Mr. Williams sufficiently controlled WHF for res judicata purposes.", "type": "concurring-in-part-and-dissenting-in-part", "author": "ERVIN, Judge," } ], "attorneys": [ "Jack E. Carter, for Plaintiffs.", "Thorp, Clarke & Neville, by J. Thomas Neville and Sharon Lee Tucker, for Defendants." ], "corrections": "", "head_matter": "TYRONE WILLIAMS and WHF, INC. OF VIRGINIA, Plaintiff v. ANNITTIE PEABODY and PEABODY\u2019S HOME IMPROVEMENTS, INC., Defendants\nNo. COA10-1461\n(Filed 15 November 2011)\n1. Collateral Estoppel and Res Judicata \u2014 collateral estoppel\u2014 no determination in original final judgment on merits\nThe trial court erred by entering summary judgment in favor of defendants on grounds of collateral estoppel. Plaintiffs brought suit against defendants alleging unjust enrichment and praying for injunctive relief, and no determination was made regarding these claims in the original final judgment on the merits.\n2. Collateral Estoppel and Res Judicata \u2014 res judicata\u2014 reasonable diligence\nAssuming arguendo that plaintiffs and defendants satisfied the requirement of identity of parties, plaintiffs\u2019 claims were barred by res judicata when the heart of both the original and present lawsuits were disputes regarding four properties. Plaintiffs, exercising reasonable diligence, should have brought forward the claims for unjust enrichment and prayer for injunctive relief at the time of the original lawsuit.\n3. Collateral Estoppel and Res Judicata \u2014 res judicata\u2014 identity of parties \u2014 Lassiter exception\nAlthough the trial court did not err by dismissing plaintiff individual\u2019s lawsuit against defendants based on the doctrine of res judicata, it erred by barring defendant company\u2019s complaint on grounds of res judicata. The Lassiter exception did not apply because the evidence did not support the control requirement of privity. The case was remanded for a determination of whether defendant individual had control of defendant company and its action against defendants.\nJudge ERWIN concurring in part and dissenting in part.\nAppeal by Plaintiff from Order entered 12 June 2010 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 28 April 2011.\nJack E. Carter, for Plaintiffs.\nThorp, Clarke & Neville, by J. Thomas Neville and Sharon Lee Tucker, for Defendants." }, "file_name": "0001-01", "first_page_order": 11, "last_page_order": 30 }